Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 44228 Docket No. MW-45665
20-3-NRAB-00003-190646
The Third Division consisted of the regular members and in addition Referee Dr. Andrée Y. McKissick when award was rendered.
(Brotherhood of Maintenance of Way Employes Division (IBT Rail Conference
(CSX Transportation, Inc.
“Claim of the System Committee of the Brotherhood that:
The Agreement was violated when, beginning on June 26, 2018 through July 16, 2018, the Carrier assigned outside forces (Wilderness) to perform Maintenance of Way Department work (spray water on hot spots and fires caused by the rail grinder) behind Rail Grinder RG 414 at various locations along the right of way (Carrier’s file 18-43482 CSX).
As a consequence of the violation referred to in Part (1) above, Claimants M. Hensley and K. Kuhn shall each now ‘… be compensated for (192) hours at their respective straight time rates of pay with an additional ($1) one dollar per hour because of the work being performed at night.’”
The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act, as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Parties to said dispute were given due notice of hearing thereon.
The pertinent contractual provision which govern this work at issue is the Rail Grinder Agreement, dated November 9, 2005 as well as the Scope Rule and Rule 1 of the CSX and Maintenance of Way Agreement, effective June 1, 1999. In addition, the Organization also notes that the Brotherhood of Maintenance of Way Employes (BMWED) Agreement involving Rules 2, 3, 4, 11, 17 and Appendix M is involved.
On August 1, 2018, the Organization filed this claim which was denied on September 18, 2018.
It is the position of the Carrier that this work was not scope-covered work. Instead, the Carrier asserts that this work at issue is firefighting work. Moreover, the Carrier further asserts that the Organization cannot claim this type of work under the past practice provision of the Scope Rule. Specifically, the Carrier points out that the water service referred in the Scope Rule actually applies to plumbing type of service.
On the other hand, the Organization counters that the clear language of the Memorandum of Agreement (MOA), dated November 9, 2005, explicitly reserves work for the Maintenance of Way forces. Moreover, the Organization adds that even if this Agreement No. 12-053-05 had not reserved this work, that the Scope Rule, in and of itself covers the matter in dispute. Specifically, Labor Agreement No. 12-053-05 provides that if CSXT determines that “additional work must be done to support rail grinder operations that are contracted out under this Letter of Agreement, that work will be assigned to BMWED-represented forces on the applicable Seniority District or Service Lane under the terms of the June 1, 1999 Agreement.”
Based on the above Agreement and its applicability, the Board finds that the Organization has a right to the work at issue. Accordingly, this claim is sustained.
The claim is sustained and the monetary remedy shall be awarded to each claimant, M. Hensley and K. Kuhn, for one-hundred ninety-two (192) hours at straight time plus an additional one dollar ($1) per hour because of the work being performed at night.
Claim sustained.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division Dated at Chicago, Illinois, this 30th day of September 2020.